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Consumer Act doesn’t apply to dental malpractice

dentist_mainA patient cannot sue a dentist under the Virginia Consumer Protection Act as part of a dental malpractice claim, a federal judge in Alexandria has ruled.

The VCPA claim involved alleged fraud, based on how much the dentist told the patient certain procedures would cost. But the Act contains a specific exception that applies to businesses that are regulated by the commonwealth, such as professions.

U.S. District Judge Liam O’Grady applied that exception and dismissed the VCPA claim. The rest of the lawsuit in Caruth v. C. Benson Clark DDS (VLW 017-3-198) goes forward.

The patient, Leanora Caruth, was concerned about her teeth staying in place once she had braces removed. Her regular dentist referred her to Clark, who specializes in implants.

She proceeded to see Clark over the course of several months in 2011.

While the exact plan of action is disputed, the parties agreed the work would focus on a particular tooth that was the anchor for a bridge.

Clark told Caruth the entire treatment would cost $24,000.

That tooth was compromised, Clark said, and it ultimately was removed for an implant. Caruth questions the necessity of removal, arguing that Clark had financial problems and that he could charge nearly $6,000 for an implant rather than $900 for a crown.

Over a two-year span, Caruth was charged $22,773 more than the initial $24,000 cost.

Caruth continued to see dentists, including Clark, into 2014, trying to get her teeth and bite fixed properly.

She ultimately had all of her teeth removed and dental implants installed by another provider.

Caruth filed a dental malpractice suit that included a fraud claim and a VCPA claim. O’Grady said that she claimed fraud  by alleging, among other things, that Clark quoted the $24,000 figure when he knew his work would cost more, that he was in financial straits and that he did not provide a plan so he could add new services with impunity.

He did not rule on the fraud claim at this time. Caruth claimed, he wrote, that the dentist used her situation to “milk her mouth for all it was worth.”

O’Grady wrote that “there is an imbalance of power between the patient and doctor that the court must consider here.”

A patient places “a requisite level of trust necessary to begin a relationship with an individual who will eventually affect a patient’s bodily health, structure and integrity.”

Indeed, the judge said, “there is a unique personal relationship with one’s doctor or dentist.”

Add to that the fact that medical professionals bring their expertise to the relationship and a fact-finder could determine all these factors may have provided an incentive to misrepresent, he wrote, ultimately stating that he made no findings as to Clark’s intent in the case. Summary judgment on the issue is inappropriate, O’Grady concluded.

On the VCPA issue, however, he wrote that the law contains a carve-out exception that exempts from the Act any aspect of a consumer transaction which is governed by laws or regulations of the commonwealth.

This clause, known as Exception A, has been used previously to strike a VCPA claim as part of a legal malpractice suit.

And O’Grady found that logic analogous. The work of dentists is covered by the Board of Dentistry, which establishes regulations for the licensing and certification of practitioners. The board further sets administrative regs to manage people in the field.

The judge dismissed that portion of the suit but let the remaining claims go forward.

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